by Today the Supreme Court is hearing arguments in Christian Legal Society v. Martinez. The case, one of many similar cases that have arisen in universities around the country, addresses the question of whether a university, applying its nondiscrimination policies, can decline to recognize a campus religious association that limits its members or officers to students who accept that association’s beliefs and who agree to attempt to live by its moral principles (including, in some cases, refraining from extramarital sex).
The case reminds me of a panel I was on a couple of years ago at UC Davis. One of the main presenters was Joan Howarth, then a professor at UNLV, and now (I believe) law dean at Michigan State. Her remarks on this occasion seemed to me eminently sensible, and also courageous (given that supporting rights for gays and lesbians has been a major focus of Howarth’s work, and given her usual alignment with the ACLU).
Howarth explained that
“my argument is grounded in a deep commitment to equality and improved justice for members of the lesbian, gay, bisexual, and transgender (“LGBT”) communities. But forcing faith-based student organizations to abide by school or university nondiscrimination policies does not significantly advance equality and nondiscrimination rights for sexual minorities. To the contrary, recognizing the First Amendment rights of even antihomosexual student organizations may be, in fact, the better path to LGBT rights and school environments in which LGBT students will have the safety, security, and support in which they can thrive.”
And she went on to argue that
“[t]he principle of equality or nondiscrimination that insists on the right of Democrats to join the Young Republicans, or homophobes to join the Gay-Straight Alliance, or people who do not subscribe to the CLS statement of purpose to join the CLS, is an overly formal, inconsequential, empty version of equality. Many defenders of nondiscrimination policies in these conflicts tend to overvalue the equality right at stake because of its usefulness as a symbol of support for LGBT people, but more meaningful and less costly symbols would be preferable.”
Readers who would like to consider Howarth’s analysis can find it at Joan W. Howarth, Teaching Freedom: Exclusionary Rights of Student Groups, 42 U. C. Davis Law Review 889 (2009).
According to SCOTUS at: http://www.scotusblog.com/2010/04/big-decision-on-an-uncertain-record/#more-18847 reporting on the CLS oral argument, some Justices seemed frustrated with the incomplete record and might not be willing to give a decision on the merits.
A couple of comments on the case: First, it is a shame that the Free Exercise of Religion Clause today has so little significance that it received almost no attention from the parties. After Smith, the Free Exercise Clause provides almost no protection beyond that afforded under the Free Speech Clause (and the right of association growing from it). It seems that the drafters intended to protect something with the Free Exercise clause.
Second, as to the merits the Court needs to protect the associational rights of CLS and other minority groups on campus. Hastings law school claimed that it required all recognized groups to accept all students as voting members. (Whether Hastings had such an “all comers” policy for all groups or only imposed this requirement on religious groups may be one of the factual questions that some Justices think was not resolved in the record.) In order to protect First Amendment interests, we need two kinds of groups. We need internally-diverse groups within which we can exchange and debate ideas with those who disagree with us. But we also need interest groups/advocacy groups made up of those with similar ideas. Within interest groups, we can comfortably raise, develop, discuss, and refine ideas before we enter the public square. This is especially true of minority groups. Imagine the first person who considered the idea of gay marriage in a region of the country that would be hostile to that idea. That person might need to explore the idea with those likely to agree with him, before he explores it with those likely to disagree with him. Ideas need both types of groups.
Hey Bob — I sort of agree with your analysis on the merits, by OTOH, I really regret the way this case has proceeded in many ways. I’m putting up a post shortly on this. I’ll be curious for your thoughts.
Who are christians to dictate who can and can’t marry…